Verdict No. 272/2018/HS-PT dated november 16, 2018 regarding illegal transport of narcotic substances

SUPERIOR PEOPLE’S COURT IN DA NANG

VERDICT NO. 272/2018/HS-PT DATED NOVEMBER 16, 2018 REGARDING ILLEGAL TRANSPORT OF NARCOTIC SUBSTANCES

On November 16, 2018, the appellate trial court is conducted at the office of the Superior People’s Court in Da Nang to hear the criminal case No. 160/TLPT-HS dated April 18, 20178 against Vo Thanh N regarding “Illegal transport of narcotic substances”. Based on the appeal of the defendant against the First Instance Criminal Verdict No. 03/2018/HS-ST dated January 16, 2018 of the People’s Court of Gia Lai province.

* Appellant: Vo Thanh N, born in March 20, 1991 in city P, Gia Lai province; registered permanent residence and address: 121 street S, group 3, ward H, city P, Gia Lai province; occupation: mobile phone shop staff; educational level: 12/12; ethnicity: Kinh; religion: none; gender: male; nationality: Vietnam; father: Mr. Vo Thanh C (died) and Mrs. Bui Thi H1, born in 1965; no wife or child; previous conviction and administrative penalty: none; detained from August 18, 2016 to August 29, 2016; being out on bail, present.

In addition, other defendants: Do Quoc T, Le Duc T1, Nguyen Le T2, Truong Ngoc T3 and persons with relevant rights and obligations made no appeal.

THE CASE

According to the documents contained in the case file and the progress at the trial, the contents of the case are summarized as follows:

At 13:00 on August 18, 2016, in front of Gia Lai Post Office, group 1, TS ward, P city, Gia Lai province, Investigation Police Department of Drug-related Crimes cooperated with Police Investigation Body of Gia Lai province, Police of TS ward, P city, Gia Lai province in inspecting 01 parcel held by Vo Thanh N on hands. The inspection shows that: The parcel is a sealed white paper box, bearing the customs stamp of the Socialist Republic of Vietnam No. AA/10204025. The paper parcel size is 20 x 26.5 cm. On one side, a stamp reads: Name: Vo Thanh N. Street: 125 Tran Phu. Postal; code/city: 600000 P city, Gia Lai province. Country: Viet Nam. Tel: 01223999103. The other side bears customs stamp and seal of post office of city P which reads “THÀNH PHỐ P-KT" dated August 15, 2016 No. 600100. Inside the parcel are 49 white opaque tablets, shield-shaped, concave straight line in one side.

The Expertise Conclusion No. 35/KLGD dated August 29, 2016 of Criminalistics Division of Gia Lai Police shows that: 49 white opaque, shield-shaped tablets are narcotics, containing MDMA (methylenodioxyl methamphetamine), weighing 23.7153 g.

The Supplemental Expertise Conclusion No. 359/KLGD dated November 17, 2017 of Criminalistics Division of Gia Lai Police shows that: In total, there are 49 white opaque, shield-shaped tablets are narcotics, containing MDMA (methylenodioxyl methamphetamine), weighing 22.7186 g.

Vo Thanh N confessed that he received this amount of narcotics on behalf of Do Quoc T. From Vo Thanh N’s testimony, the Investigation Body conducted an urgent arrest of Do Quoc T and Nguyen Le T2. After searching the residence of T2, they found in the computer drawer in the bedroom of T2 01 transparent plastic bag containing opaque white powder.

The Expertise Conclusion No. 340/KLGD dated September 23, 2016 shows that the opaque white power in plastic bag is narcotic; containing MDMA (this amount of narcotics is only enough for assessment, so it has been totally used). On August 21, 2016, Le Duc T1 turned himself in. On August 20, 2016, Trinh Ngoc T4 handed over 1 yellow opaque tablet with an imprinted u-shape on one side.

The Expertise Conclusion No. 593 dated September 28, 2016 of the Sub-Department of Criminal Science and Technology in Da Nang and Expertise Conclusion No. 319 dated September 1, 2016 of Criminalistics Department of Gia Lai Province show that: there is 1 yellow table weighing 0.30133 g, not detecting common narcotic substance. Through the investigation, the defendants admitted as follows:

Confession of Do Quoc T: T started using marijuana in 2014, and early in 2016 when he surfed on the Internet, he knew that the "DeepWep" page was selling illegal goods from foreign countries. So, he accessed this page and made a personal account. Then T used Vietnamese currency to buy Bitcoin, and then used this virtual currency to buy narcotics (ecstasy) at this site, and then the narcotics will be sent from abroad.

Since 2016, T has bought narcotics from this site 05 times, the first 3 times T bought 10 pills/time, 02 times later T bought 50 pills/time for USD 165 (then exchanged for Bitcoin). After buying these pills, T resold them to Nguyen Le T2, Truong Ngoc T3, Le Duc T1, Le Hung N1 from 01 to 02 pills for VND 300,000/pill for T2, T1, N1 and T3 to go to the bar to use.

In addition, in May 2016, when Le Duc T1 returned to B city, Dak Lak province, T1 asked T to buy 10 ecstasy pills for VND 3,000,000, T agreed and asked Nguyen Le T2, Truong Ngoc T3 to buy a box of KFC cakes, then T took the narcotics and put them in the box then told T2 to repackage it, and then T3 wrote T1's phone number and a different name on the box. Then T told T2 and T3 to bring it to the bus line and sent it from Dak Lak to T1. After receiving narcotics T1 transferred money to T2's bank account for T. Then T borrowed T2's ATM card to withdraw money.

At the end of July 2016, T continued to go to DeepWep to buy narcotics to resell and asked Vo Thanh N provide his name and address to receive them on behalf of T, T lied to N that they were marijuana sent from abroad, not ecstasy. So N agreed. After that, T called and told T3 if N received the drug, he would bring it to T3, but because he was not home, T3 told him to bring it to Nguyen Thi Kim U's hair salon. However, when N just received the narcotics, the investigation Agency caught him red-handed.

In addition, T also admitted that plastic bag stuck with narcotic seized at Nguyen Le T2's bedroom belonged to T, these narcotics were ecstasy bought from foreign countries and the rest was shaken ecstasy remaining on the plastic bag. Confession of Vo Thanh N: Vo Thanh N and Do Quoc T are friends. At the end of July 2016, Do Quoc T sent a message via facebook telling Vo Thanh N if he could send a parcel to N's house. When N asked what is was, T said it was marijuana. Because N was a classmate of the same class, N agreed to receive it. After that, N gave the address of N's workplace at V phone shop at 125 city street, P city, Gia Lai province to T. On the morning of August 18, 2016, T called to ask N if the parcel had come. When it comes, please bring it to the hair salon at 70 Thong Nhat, City P, Gia Lai province to Nguyen Thi Kim U (born in 1991, residing in: group 10, ward I, city P, Gia Lai province). Around 10 o'clock of the same day, N received a notice to the post office in Gia Lai province to receive the parcel. After arriving at the post office to complete the procedures and receive the parcel, the Investigation Agency discovered and caught it.

Confession of Le Duc T1: In June 2016, Le Duc T1 returned to B city, Dak Lak province, T1 asked to buy 10 ecstasy pills from Do Quoc T for VND 3,000,000 VND. T1 received the narcotics through the bus line, this amount of narcotic was wrapped in a box of cake, on the box of cake is the phone number of T1 and different name (T1 did not remember the name). After receiving the narcotics, T1 transferred money to T through Nguyen Le T2's bank account, which was sold to Ho Xuan T5 (born in 1994, residing in: village 6, commune E, district B1, Dak Lak province) one pill fir VND 400,000, the remaining was used up by T1. Nguyen Le T2, Truong Ngoc T3 confessed: While hanging out at a bar, T2 and T3 repeatedly bought narcotics (ecstasy) from T for use, each time they purchased from 01 to 02 pills for VND 300,000 /pill.

In June 2016, T asked T2 and T3 to buy a box of KFC cakes, then T2 was the one who helped T pack narcotics into the box while T3 wrote the name and phone number of T1. Then T2 and T3 helped T bring these narcotics to the bus line and sent them to Dak Lak for T1. T2 and T3 know that this amount of narcotic was sold to T1 by T. At the same time, T2 also lent T his ATM account at the bank D to send money to buy narcotics.

In addition, in July 2016, Truong Ngoc T3 asked T2 to buy 50 ecstasy pills on behalf of Trinh Ngoc T4 for VND 10,400,000. T2 bought ecstasy from a man named Bin at the bar (T2 does not know who Bin is, he has not been identified yet) and then sent it to T4 via the bus line. T2 and T3 only helped T4 to buy it and did not earn benefit from this.

Confession of Ho Xuan T5: T5 admitted that he has bought narcotics many times from Le Duc T1 to use. However, T1 claimed that he only sold 1 pill of narcotic to T5 once for VND 400,000. Currently, T5 has left his residence, and his whereabouts has not been identified yet. Therefore, apart from T5's testimony, there is no evidence that T1 has sold narcotics to T5 many times.

Confessional of Trinh Ngoc T4: T4 admitted that she has asked Truong Ngoc T3 to help her buy 50 ecstasy pills for VND 10,400,000. T4 and T3 are friends, so T4 asked T3 to help buy them without paying or giving T3 any benefit. This amount of narcotics has been used up by T4, there is one remaining pill, however, through assessment, this is not narcotic.

* In the First Instance Criminal Verdict No. 03/2018/HS-ST dated January 16, 2018, the People’s Court of Gia Lai province judged:

Declaring defendant Vo Thanh N guilty of "Illegal transport of narcotic substances".

+ Pursuant to Clause 1, Article 194; Points b, p Clause 1, Clause 2 Article 46; Article 1999 of Criminal Code 24, Vo Thanh N is sentenced to 24 (twenty four) months in prison. The prison term commences from the date on which the defendant serves the sentence, which is deducted from the time served on custody and detention from August 18, 2016 to August 29, 2016.

In addition, the Verdict also ruled on the criminal responsibility part of Do Quoc T, Le Duc T1, Nguyen Le T2, Truong Ngoc T3, the court fee, the right to appeal and handle material evidence in accordance with the law. On January 17, 2018, the defendant Vo Thanh N made an appeal for commutation of sentence.

JUDGMENT OF THE COURT

On the basis of the content of the case, based on the documents available in the case file, which have been litigated at the trial, the Trial Panel shall determine as follows: At 13:00 on August 18, 2016, in front of Gia Lai Post Office, group 1, TS ward, P city, Gia Lai province, Investigation Police Department of Drug-related Crimes cooperated with Police Investigation Body of Gia Lai province, Police of TS ward, P city, Gia Lai province in inspecting 01 parcel held by Vo Thanh N on hands.

The Supplemental Expertise Conclusion No. 359/KLGD dated November 17, 2017 of Criminalistics Division of Gia Lai Police shows that: In total, there are 49 white opaque, shield-shaped tablets are narcotics, containing MDMA (methylenodioxyl methamphetamine), weighing 22.7186 g.

 [1] Considering the nature of criminal offense of the defendant: At the court hearing, the defendant pleaded guilty to his offense, comparing with other evidences and documents in the case files, there are sufficient grounds to conclude: Defendant Vo Thanh N commits the crime of "Illegal transport of narcotic substances" under Clause 1, Article 194 of the Criminal Code 1999 in Viet Nam. Because the defendant committed an act of receiving parcel on behalf of Do Quoc T. N only knew it marijuana rather than ecstasy and does not know the amount, which is MDMA 22.7186 g through assessment, so there is sufficient basis to accuse the defendant of illegal transport of narcotic substances.

 [2] In the appeal for commutation of sentence, the defendant Vo Thanh N claims that his offense arose from the friendship, T lied to the defendant that the amount of marijuana is small, so it was okay. In the process of resolving the case, the defendant expressed cooperative attitude and his family’s financial situation is difficult, the defendant was the breadwinner of the family, the penalty of 24 months’ imprisonment for the defendant is too heavy. The Panel found that it is grounded and lawful when the Court of First Instance accused the offender of "Illegal transport of narcotic substances" under Clause 1, Article 194 of the 1999 Criminal Code. The First Instance Court also reviewed all extenuating circumstances of criminal liability, and imposed the defendant the lowest level of the penalty frame which is considered a favor for the respondent.

At the court session, the defendant did not give any other new details to mitigate the punishment, so the Trial Panel does not accept the appeal of the defendant and upholds the First Instance Verdict.

 [3] Because the appeal is rejected, the respondent is obliged to pay appellate court fee.

Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Article 355 and Article 356 of the Criminal Procedure Code in Viet Nam;

1. Do not accept the appeal of defendant Vo Thanh N, uphold the First Instance Criminal Verdict No. 03/2018/HS-ST dated January 16, 2018 of the People's Court of Gia Lai province.

Pursuant to Clause 1, Article 194; Point p Clause 1, Clause 2 Article 46 of Criminal Code 1999, Vo Thanh N is sentenced to 2 (two) years in prison for: “Illegal transport of narcotic substances”. The prison term commences from the date on which the defendant serves the sentence, which is deducted from the time served on custody and detention from August 18, 2016 to August 29, 2016.

2. The defendant Vo Thanh N is obliged to pay VND 200,000 of the appellate criminal court fee.

3. Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

The Appellate Judgment shall take legal effect from the date of pronouncement./.